Oshin Kiszko’s mother, Angela. ‘Children with medulloblastoma go through years of what I see as torture, medical treatments, relapses, just to get this – maybe – five years,’ she said.
Photograph: Channel Nine

The parents of a Western Australian boy who is undergoing court-ordered chemotherapy against their wishes cannot overrule the doctors in charge of his care without a lengthy appeal process – by which time it could be too late to change his treatment plan, medical law experts say.

Thackray acted on an application by a group of doctors at PMH to authorise the treatments despite the lack of parental consent, the first such application made for cancer treatment in WA. The treatment began on Easter Day, six days before Oshin’s sixth birthday.

The authorisation can be overturned only by appeal to a higher court, which Prof Loane Skene, an internationally recognised legal and medical expert with the University of Melbourne, said was legally difficult and often took too long.

Skene said the test applied by the court – whether the proposed medical treatment would be in the best interests of the child – often favoured the view of medical practitioners over parents or children themselves objecting to treatment.

But Skene said Oshin’s was a particularly unusual case. “In this one there are two views, it just depends how you assess ‘best interests’,” she said. “Usually, it’s in a child’s best interests to have their life saved, or to have a shot at lengthening their life. The parents, who see the child every day, may see that this is not in the child’s best interests in all circumstances.”

Oshin was diagnosed with medulloblastoma in December and underwent a seven-hour brain surgery soon after, which left him partially paralysed in his left side and unable to walk unaided, according to his mother, Angela Kiszko. That experience convinced Kiszko and Oshin’s father, Colin Strachan, that they didn’t want put him through a difficult treatment regime.

“Children with medulloblastoma go through years of what I see as torture, medical treatments, relapses, just to get this – maybe – five years,” Kiszko told Fairfax Media.

“This original prognosis of 50-60% may sound good but ... as the oncologist said, ‘You’re either in that 50% or you’re in the zero, and we can’t tell who will be who.’

“Being Oshin’s mum, I know that I don’t want to put him through all of that for a possibility of living a torturous five years.”

The couple said they decided against the aggressive treatment in favour of palliative care, in with the aim of preserving their son’s quality of life.

“He wakes up saying he’s frightened,” Kiszko said. “He found it so difficult being in there, the procedures, he screamed and kicked and scratched. At a certain point they had to have six people hold him down and tie him with a sheet and have someone hold his head … All I ask for is palliative care for our beautiful boy.

“I would like to offer Oshin peace, love and some fun times while we still can.”

Caryn Ger, a NSW medical negligence practice leader at Shine lawyers, said the court had made its decision based on the projected quality of life, not just its preservation.

Strachan said the decision made him feel powerless. “There is nothing safe about this treatment, they kill everything in that little body and then have to try to repair a lot of damage,” he told Fairfax. “It becomes a life of survival rather than a childhood full of joy.”

Neurosurgeon Dr Brian Owler, the national president of the Australian Medical Association, said the the combination of brain surgery, chemotherapy and radiotherapy was “incredibly harrowing” and carried a risk of severe side-effects, but the only alternative was death within months.

“When you know that the cost of action without treatment is death and you know that there is a chance of reasonable survival rates with good quality of life, the choice is clear,” he said. “Many people who undergo treatment for medulloblastoma do so successfully and go on to have fulfilling lives and I don’t think they regret that.